MISSISSIPPI LEGISLATURE
2014 Regular Session
To: Public Health and Welfare; Judiciary, Division A
By: Senator(s) Wilemon
AN ACT TO AMEND SECTIONS 93-9-9 AND 41-57-23, MISSISSIPPI CODE OF 1972, TO PROVIDE THAT THE SURNAME OF A CHILD BORN TO PARENTS WHO ARE NOT MARRIED SHALL BE EITHER AS AGREED UPON BY THE NATURAL PARENTS OR AS DETERMINED BY A COURT ACCORDING TO THE BEST INTERESTS OF THE CHILD; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. Section 93-9-9, Mississippi Code of 1972, is amended as follows:
93-9-9. (1) Paternity may
be determined upon the petition of the mother, or father, the child or any
public authority chargeable by law with the support of the child; * * * an adjudication of
paternity after the death of the defendant must be made only upon clear and
convincing evidence. If paternity has been lawfully determined, or has been
acknowledged in writing according to the laws of this state, the liabilities of
the noncustodial parent may be enforced in the same or other proceedings by the
custodial parent, the child, or any public authority * * * that has furnished or may furnish
the reasonable expenses of pregnancy, confinement, education, necessary support
and maintenance, * * *
or medical or funeral expenses for the custodial parent or the child.
The trier of fact shall receive, without the need for third-party
foundation testimony certified, attested or sworn documentation as evidence of
(a) childbirth records; (b) cost of filing fees; (c) court costs; (d) service
of process fees; (e) mailing cost; (f) genetic tests and testing fees; (g) the
department's attorney's fees; (h) in cases where the state or any of its
entities or divisions have provided medical services to the child or the
child's mother, all costs of prenatal care, birthing, postnatal care and any
other medical expenses incurred by the child or by the mother as a consequence
of the mother's pregnancy or delivery; and (i) funeral expenses. All costs and
fees shall be ordered paid to the Department of Human Services in all cases
successfully prosecuted with a minimum of Two Hundred Fifty Dollars ($250.00)
in attorney's fees or an amount determined by the court without submitting an
affidavit. Proceedings may be instituted at any time until * * * the child attains the age of twenty-one
(21) years unless the child has been emancipated as provided in Section 93-5-23
and Section 93-11-65. * * * When a court determines
paternity, the court shall also determine the surname of the child * * * according to the best interest of the child, taking
into account the age of the child, the length of time the child may have used a
particular surname, and the preference of a child who is old enough to express
a preference.
(2) If the alleged father
in an action to determine paternity to which the Department of Human Services
is a party fails to appear for a scheduled hearing after having been served
with process or subsequent notice consistent with the Rules of Civil Procedure,
his paternity of the * * *
child or children shall be established by the court if an affidavit
sworn to by the mother averring the alleged father's paternity of the child has
accompanied the complaint to determine paternity. * * * The affidavit shall constitute
sufficient grounds for the court's finding of the alleged father's paternity
without the necessity of the presence or testimony of the mother at the said
hearing. The court * * *,
upon motion by the Department of Human Services, shall enter a judgment
of paternity. Any person who shall willfully and knowingly file a false
affidavit shall be subject to a fine of not more than One Thousand Dollars
($1,000.00).
(3) Upon application of
both parents to the State Board of Health and receipt by the State Board of
Health of a sworn acknowledgement of paternity executed by both parents
subsequent to the birth of a child born * * * to unmarried parents, the
birth certificate of the child shall be amended to show * * * the child's paternity if paternity
is not shown on the birth certificate. Upon request of the parents * * * under this * * * subsection (3), the surname of
the child shall be changed on the certificate to * * * the name as agreed to by
the parents in the acknowledgement of paternity. If the parents agree as to
paternity but cannot agree as to the child's surname, the court shall determine
the surname of the child as otherwise provided in this section.
(4) (a) A signed voluntary acknowledgment of paternity is subject to the right of any signatory to rescind the acknowledgment within the earlier of:
(i) One (1) year; or
(ii) The date of a judicial proceeding relating to the child, including a proceeding to establish a support order, in which the signatory is a party.
(b) After the expiration of the one-year period specified in subsection (4)(a)(i) of this section, a signed voluntary acknowledgment of paternity may be challenged in court only on the basis of fraud, duress or material mistake of fact, with the burden of proof upon the challenger; the legal responsibilities, including child support obligations, of any signatory arising from the acknowledgment may not be suspended during the pendency of the challenge, except for good cause shown.
(c) During the one-year time period specified in subsection (4)(a)(i) of this section, the alleged father may request genetic testing through the Department of Human Services in accordance with the provisions of Section 93-9-21.
(d) The one-year time limit, specified in subsection (4)(a)(i) of this section, for the right of the alleged father to rescind the signed voluntary acknowledgement of paternity shall be tolled from the date the alleged father files his formal application for genetic testing with the Department of Human Services until the date the test results are revealed to the alleged father by the department. After the one-year time period has expired, not including any period of time tolled for the purpose of acquiring genetic testing through the department, the provisions of subsection (4)(b) of this section shall apply.
SECTION 2. Section 41-57-23, Mississippi Code of 1972, is amended as follows:
41-57-23. (1) Any
petition, bill of complaint or other proceeding filed in the chancery court
to: (a) change the date of birth by two (2) or more days, (b) change the
surname of a child, (c) change the surname of either or both parents, (d)
change the birthplace of the child because of an error or omission of such
information as originally recorded * * *, (e) make any changes or additions to
a birth certificate resulting from a * * * determination of
paternity, or (f) make any changes not specifically authorized
elsewhere by statute, shall be filed in the county of residence of the
petitioner or filed in any chancery court district of the state if the
petitioner * * *
is a nonresident * * *petitioner. In all such proceedings, the State Board of
Health shall be made a respondent * * *, and a certified copy of the petition,
bill of complaint or other proceeding shall be forwarded to the State Board of
Health. Process may be served upon the State Registrar of Vital Records. The
State Board of Health shall file an answer to all such proceedings within the
time as provided by general law. The provisions of this section shall not
apply to adoption proceedings. Upon receipt of a certified copy of a decree * * * which authorizes and directs the State Board
of Health to alter the certificate, it shall comply with all of the provisions
of * * * the
decree.
(2) If a child is born to a
mother who was not married at the time of conception or birth, or at any time
between conception and birth, and the natural father acknowledges paternity,
the name of the father shall be added to the birth certificate if a notarized
affidavit by both parents acknowledging paternity is received on the form
prescribed or as provided in Section 93-9-9. The surname of the child shall be * * *
as agreed by both listed mother and father * * * in the affidavit, or as
determined by the court in its order. * * * If the mother was married
at the time of conception or birth, or at any time between conception and
birth, or if a father is already listed on the birth certificate, action must
be taken under Section 41-57-23(1) to add or change the name of the father.
(3) (a) A signed voluntary acknowledgment of paternity is subject to the right of any signatory to rescind the acknowledgment within the earlier of:
(i) One (1) year; or
(ii) The date of a judicial proceeding relating to the child, including a proceeding to establish a support order, in which the signatory is a party.
(b) After the expiration of the one-year period specified in subsection (3)(a)(i) of this section, a signed voluntary acknowledgment of paternity may be challenged in court only on the basis of fraud, duress, or material mistake of fact, with the burden of proof upon the challenger; the legal responsibilities, including child support obligations, of any signatory arising from the acknowledgment may not be suspended during the pendency of the challenge, except for good cause shown.
SECTION 3. This act shall take effect and be in force from and after July 1, 2014.